Engineering Firm Under Fire From Supervisors

January 10, 2013

In Palo Alto County, agricultural drainage is a fact of life. The Board of Supervisors deal with drainage issues the year around, and for years have relied on the services of Don Etler as a drainage engineer. However, the playing field has changed - dramatically.

The Palo Alto County Board of Supervisors met with representatives of I&S Group, the engineering firm Etler worked with, during its' Jan. 8 board meeting. The topic of the meeting was to discuss the Drainage District 15 North project in Vernon Township. The lack of a permit for construction from the Army Corps of Engineers is at the root of the problem.

Kent Rode, an engineer with I&S introduced engineer John Rosengren and Ivan Droessler, along with Gary Atherton and Nick Roethler.

"Don Etler is no longer with our firm," Rode continued. "He has chosen a different path. We regret that, but that is Don's choice."

Rode then went on to talk about the issue of the Corps permit for DD15 North. Late last month, the county received a Cease and Desist order from the Army Corps of Engineers, citing work on a jurisdictional area in DD15 North that had not been issued a permit. The order indicated that fines of up to $27,500 per day could be assessed for the violation.

According to Rode, he had telephone discussions with Rachel Perrine of the Corps about the situation and reviewed what had transpired to create the problem with the permit. An old wetlands determination was first submitted to the Corps earlier last year, but I&S received a newer determination and re-submitted it to the Corps.

Because of that re-determination, six months of time on the permitting process was lost, yet I&S felt fortunate to be able to get the new determination considered for the permit. "We were told we were very lucky to have gotten it done so quickly, but they understood there were extenuating circumstances in this case, The Corps doesn't work in terms of days, they work in terms of years," noted Nick Roethler.

The basic problem with the issuance of the construction permit from the Corps boiled down to communications delays between the Corps and the Environmental Protection Agency, according to Rode. "But, from the tone of our talks with the Corps and the EPA, I think this will all be resolved successfully. Everyone is in favor of the project."

"So who is responsible for the fines?" Supervisor Linus Solberg asked.

"There can be substantial fines," Rode agreed.

Ivan Droessler noted that the project moved forward to avoid losing the federal money portion of the project from the Iowa Department of Land Stewardship.

Supervisor Ed Noonan repeated the question on who was liable for the fines. "Who's responsible for the fine, if there is a fine?"

"The fine would be back to the District for proceeding," Rode said.

"Could we tell you guys, since we hired you to do the project, that you screwed up and put this back on you guys?" Noonan asked Rode.

"You have to understand that everybody was involved in the decision," Rode replied. "You guys were involved, but we're not to that point yet. But, the fine would be directed to the drainage district from the EPA if it occurs."

"One other question Do you have insurance for these things?" Noonan asked Rode.

"Certainly," Rode replied.

But the other issue on the mind of the supervisors was Etler, who designed the original DD 15 North project.

"Don is no longer working for our firm, but not for any reason involved with this project, I can assure you of that," Rode said. "Don has chosen a different path and indicated to us back in November that he was looking to do other things."

"So he has actually resigned or was he fired?" Solberg asked.

"He did not get fired," Rode answered.

"He is negotiating a separation with the company," Droessler said. "His last official day with the company was December 27."

"Don has not resigned, and he has not yet been fired as of noon on Monday, Jan. 7," Drainage Attorney Jim Hudson spoke up. "He tells me his status is limbo as he tries to negotiate further with the company of how to do this, either to stay with the company or leave the company."

"Don is very concerned about DD15," Droessler said. "You know Don, he's very loyal and dedicated and wanted this project to move through as cleanly as possible."

"I have a concern," Ed Noonan said. "Don Etler started this project, so why would we want to change in the middle of the stream?"

"That was Don's choice," Droessler answered.

"I don't agree with that," Supervisor Keith Wirtz spoke up. "I spoke with Don and asked him if he wants to complete this project, and he said yes I would."

"This is Don's choice, not ours." Rode said. "I'm upset with Don for doing this, as well as a lot of people. This is Don's choice. It has nothing to do with us."

"I just think this is a very poor of your firm, in the middle of this mess, to have this inner disagreement between yourselves and you want to change people that have been working on this," Noonan said.

"We fully agree with you on that statement," Droessler said. "Poor timing - we expressed those issues with Don when he brought this to us. We were not encouraging him to leave."

"Why don't you just let him finish our project," Noonan interjected. "Let him subcontract it out, whatever it takes. Let him finish our project. What's the problem with that?"

"I agree," Wirtz chimed in.

"We will take that discussion back," Droessler answered.

Because of the possibility that the district could face the potential of fines from the EPA for the lack of the permit, the board, acting on a recommendation of Hudson, voted to contact Tom Lawler of the Lawler and Swanson Law Firm in Parkersburg and brief him on the situation regarding the possibility of litigation over the fines. Wirtz offered a motion to that effect, which was quickly passed on a unanimous vote.

"I'm just looking out for the best interests of the drainage district and your infighting is not in the best interest of the drainage district, so get it figured out." Noonan told the I&S representatives to end the discussion.